Petition seeks reversal of Pocahontas prosecutor's election

December 5, 2012

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CHARLESTON, W.Va. -- A Pocahontas County resident filed a petition with the state Supreme Court this week, arguing that the man elected county prosecutor last month shouldn't have been on the ballot.Cheryl McCullough, of Arbovale, argues that Marlinton lawyer Eugene Simmons should not have been able allowed to run as a non-affiliated candidate on the ballot because he was still registered as a Democrat.Simmons defeated incumbent Prosecuting Attorney Donna Meadows Price, 1,883 votes to 1,392 votes, in last month's election. Price, a Democrat, had defeated two challengers in the Democratic primary. No Republicans filed for the office.McCullough also argues that Simmons, when collecting signatures on his petition to get on the ballot, should have been allowed to collect signatures only from people who were not registered with any party.

McCullough, representing herself, named Secretary of State Natalie Tennant and Pocahontas County Clerk Missy Bennett in her petition, arguing they did not properly enforce election laws under their jurisdictions."We disagree with the interpretation in the petition [filed by McCullough]. We will argue otherwise before the court," Tim Leach, Tennant's assistant general counsel, said on Wednesday.Leach said the Supreme Court is unlikely to hear arguments about the petition until after Jan. 14, when the court reconvenes.
Neither Price nor Simmons could be reached for comment Wednesday.McCullough was a Republican candidate for Pocahontas County magistrate, but lost in the May primary.If McCullough's legal arguments are correct, then any West Virginian registered as a member of the Democrat, Republican, Mountain and Libertarian parties would be barred from signing any petition to gain ballot status from candidates who are "independent" or members of other parties.In 2000, for example, a registered Democrat or Republican should not have been allowed to sign a petition to get Ralph Nader on the presidential ballot in West Virginia.

McCullough cities a passage from West Virginia law stating that only "groups of citizens having no party organization may nominate candidates" on political ballots."Allowing petition signers to both sign a petition and vote in the primary would be allowing them, in effect, to vote twice in the primary," McCullough argues.Simmons needed 31 signatures on his petition to get his name on the November ballot running as an independent -- 1 percent of the number of people who voted in the previous election for prosecuting attorney.Simmons got 34 signatures on his petition, including 15 Democrats, 11 Republicans and eight independents, according to McCullough. She argues that only the eight independents had the legal right to sign his petition.

Price and her staff are making arrangements to leave the prosecuting attorney's office in Pocahontas County and Simmons is closing his private law practice in Marlinton, according to McCullough's petition.Circuit Judges Joseph Pomponio and James Rowe have "ongoing unresolved ethics complaints against" Price, McCullough's petition states, for failing to participate in dozens of legal hearings, many involving drug cases.Pocahontas County Sheriff David Jonese also accused Price of failing to bring drug cases to trial.Chief Justice Menis Ketchum recently appointed retired Supreme Court Judge Larry Starcher to hear evidence in these charges against Price. No hearing have been held yet.McCullough's petition also criticizes Simmons for having been "suspended from the practice of law three times, reprimanded once and admonished twice."In 2006, Simmons received his third suspension, for 20 days, for failing to complete estate and financial work for four clients. The Supreme Court required him to work under the supervision of another lawyer for one year.

Simmons' previous two suspensions were for six months, issued in November 1990, and one month, issued in November 1995, according to a document the state's Lawyer Disciplinary Board filed with the Supreme Court in 2006.Reach Paul J. Nyden at pjnyden@wvgazette.com or 304-348-5164.